Among thorny legal questions of al Qaida suspect’s capture: Does holding him at sea violate Geneva Convention?

Hannah Allam

Human rights groups and international law experts said Tuesday that the U.S. raid that snatched a Libyan militant from the streets of Tripoli over the weekend was on murky legal ground, reviving an old debate over what rights should be afforded to foreign terrorist suspects.

Abu Anas al Libi, the nom de guerre for Nazih Abdul Hamed al Ruqai, was seized from in front of his home in Libyan capital by a team from U.S. special forces, the FBI and the CIA on Saturday and is being held aboard a U.S. Navy ship in the Mediterranean Sea, according to U.S. officials.

U.S. officials have said he’s being held under the “laws of war,” but al Libi also has been under indictment in U.S. civilian courts for more than a decade in connection with the deadly 1998 bombings of U.S. embassies in Kenya and Tanzania.

That dual classification – enemy combatant and criminal defendant – is sowing confusion about what rights apply in al Libi’s case. An indicted defendant should be allowed access to a lawyer and an appearance before a judge. And a prisoner of war should be treated in accordance with the Geneva Convention, which specifically bans keeping a detainee at sea, said Eugene Fidell, a specialist in international law who teaches at Yale Law School.

“There is a problem in the government trying to have its cake and eat it,” Fidell said.

“What this rendition signals,” he added, “is the opening of yet another in this endless series of chapters presenting new legal challenges. The war in Afghanistan might be winding down, but the legal questions remain.”

Amnesty International and Human Rights Watch, two international human rights monitoring groups, issued statements calling on the Obama administration to give al Libi access to an attorney and promptly charge him before a judge.

In addition, the International Committee of the Red Cross is seeking access to al Libi in accordance with a U.S. law says that the group is notified and given access to anyone detained by the Department of Defense on suspicion of belonging to the Taliban, al Qaida or “associated forces” after initial interrogation.

Anna Nelson, a Washington-based spokeswoman for the ICRC, said in a statement that the group “fully expects to be officially notified and granted access to Mr. al Libi.”

“We do not yet have a timeframe for when that might occur but the ICRC is in contact with defense officials regarding Mr. al Libi,” she said.

The State Department said Tuesday that U.S. officials were in touch with the ICRC about the case and potential access to the suspect but did not elaborate.

Spokeswoman Marie Harf reiterated the Obama administration’s line that al Libi was “detained lawfully” and is being “treated humanely,” points that are emphasized to play down comparisons with the George W. Bush administration’s notorious track record for capturing foreign terror suspects and holding them incommunicado in legal limbo.

Harf did not have answers, however, for if and when al Libi would be brought before a judge, consult an attorney or be formally notified of the charges against him.

“If we want to make the decision to do this, we need to say clearly that this is how we treat al Qaida and enemy combatants: They don’t see an attorney or a judge and we get to question them for as long as we want,” said Nada Bakos, a former CIA analyst who tracked al Qaida for years. “We need to make a definitive decision so that we’re not still making this up as we go along. The ambiguity of this is causing problems.”

Senior administration officials have said publicly and repeatedly that al Libi’s capture was permissible under the Authorization to Use Military Force Act, which states that the president can use all necessary and appropriate force against nations, organizations or persons he determines aided in the Sept. 11, 2001, attacks.

Fidell, of Yale, said if that’s the case, then U.S. officials “bump into the spirit, at least, of the Geneva Convention and a protracted shipboard interrogation would be inappropriate.” He predicted that al Libi’s case is likely to be tied up in “inevitable battles” over whether information extracted now is admissible in court.

But Fidell also said the administration is likely to have examined all the potential legal pitfalls and decided to forge ahead with a “wide” application of the Authorization to Use Military Force Act.

“The combination of Department of Defense and Justice Department know how to dance this dance now,” Fidell said. “For better or worse, our agencies have got this down.”

The Human Rights Watch statement on al Libi’s case challenges the legal basis for the U.S. holding him. The group says that the U.S. government should show there’s no functioning justice system in Libya that could’ve facilitated al Libi’s arrest and possible extradition in accordance with international standards. The group notes that Libya’s justice system is riddled with problems such as abuse in custody and the lack of judicial review.

Human Rights Watch also pokes at the invocation of the laws of war, which the group says “presupposes an ongoing armed conflict between the U.S. and al Qaida.” The group suggests that premise is at odds with President Barack Obama’s speech on May 23 that described the al Qaida threat to the United States as consisting of sporadic, isolated attacks, carried out by autonomous or loosely affiliated cells.

“That description appears to fall short of the level of military operations that define an armed conflict under international law,” according to the Human Rights Watch statement.

Human Rights Watch also says al Libi’s interrogation as a combatant should be used for military intelligence purposes – not in connection with alleged criminal wrongdoing – and that he still retains due process rights such as being promptly brought before a judge, being formally charged and gaining access to legal counsel.

“The U.S. government complicated the 9/11 cases by mistreating the suspects and then prosecuting them in deeply flawed military commissions,” said Laura Pitter, a senior counterterrorism researcher at Human Rights Watch. “The Obama administration should make sure it doesn’t repeat past mistakes with al Libi, so that he can be prosecuted to the full extent of the law.”

Amnesty International laid out similar arguments and also demanded that the U.S. government confirm al Libi’s whereabouts, and provide him access to legal counsel, medical care and family members. The group also raised concerns about his treatment in U.S. custody, noting that while Obama has banned torture, the Army Field Manual still authorizes prolonged isolation and sleep deprivation.

Amnesty cited the case of Somali national Ahmed Abdulkadir Warsame, who was detained by U.S. forces in 2011 and “was apparently held in secret detention for at least two weeks and incommunicado for at least six weeks before he was transferred to New York in early July 2011 and charged with terrorism-related offenses.”

By Hannah Allam
McClatchy Washington Bureau